http://www.ca9.uscourts.gov/datastore/opinions/2011/04/25/09-50446.pdf
This case is a bit disturbing.
"Gerardo Sandoval-Gonzalez was convicted under 8 U.S.C.
§ 1326(a) for being an alien who reentered the United States
after previously being deported. The jury at his trial, however,
was not required to find beyond a reasonable doubt that Sandoval
was an alien. Instead, the jury was told that “there is a
presumption” of his alienage, and the burden of proof was
shifted to Sandoval to establish that he had obtained American
citizenship by having been born to a U.S. citizen father.
We hold that this was error, and, moreover, a prejudicial
error. Accordingly, we vacate his conviction and remand."
*****
"Through U.S. Border Patrol Agent Antonio Hernandez, the
government also introduced into evidence Sandoval’s Mexican
birth certificate, which stated that he was born in Tijuana,
his mother was a Mexican national, and his father was a
national of the United States who was originally from Los
Angeles, California.
On cross-examination, defense counsel began to ask Hernandez
about the possibility of a foreign-born individual
acquiring citizenship at birth through a U.S. citizen parent,
known as “derivative citizenship.” Upon the government’s
request for a side bar discussion, defense counsel explained
that under our decision in United States v. Smith-Baltiher, 424
F.3d 913 (9th Cir. 2005), evidence of derivative citizenship
may be used to cast doubt upon the government’s allegation
that a defendant is an alien, and that Sandoval’s father’s citizenship
provided basis for such doubt. The government
objected that derivative citizenship is an affirmative defense
for which the defendant must make a prima facie showing of
eligibility — namely, that he could meet the burden of establishing
such citizenship: that he is “a person born outside the
geographical limits of the United States . . . of parents one of
whom is an alien, and the other a citizen of the United States
who, prior to the birth of such person, was physically present
in the United States” for a period of ten years, at least five of
which were after the age of fourteen."
Click the link and read on to find out more....
This case is a bit disturbing.
"Gerardo Sandoval-Gonzalez was convicted under 8 U.S.C.
§ 1326(a) for being an alien who reentered the United States
after previously being deported. The jury at his trial, however,
was not required to find beyond a reasonable doubt that Sandoval
was an alien. Instead, the jury was told that “there is a
presumption” of his alienage, and the burden of proof was
shifted to Sandoval to establish that he had obtained American
citizenship by having been born to a U.S. citizen father.
We hold that this was error, and, moreover, a prejudicial
error. Accordingly, we vacate his conviction and remand."
*****
"Through U.S. Border Patrol Agent Antonio Hernandez, the
government also introduced into evidence Sandoval’s Mexican
birth certificate, which stated that he was born in Tijuana,
his mother was a Mexican national, and his father was a
national of the United States who was originally from Los
Angeles, California.
On cross-examination, defense counsel began to ask Hernandez
about the possibility of a foreign-born individual
acquiring citizenship at birth through a U.S. citizen parent,
known as “derivative citizenship.” Upon the government’s
request for a side bar discussion, defense counsel explained
that under our decision in United States v. Smith-Baltiher, 424
F.3d 913 (9th Cir. 2005), evidence of derivative citizenship
may be used to cast doubt upon the government’s allegation
that a defendant is an alien, and that Sandoval’s father’s citizenship
provided basis for such doubt. The government
objected that derivative citizenship is an affirmative defense
for which the defendant must make a prima facie showing of
eligibility — namely, that he could meet the burden of establishing
such citizenship: that he is “a person born outside the
geographical limits of the United States . . . of parents one of
whom is an alien, and the other a citizen of the United States
who, prior to the birth of such person, was physically present
in the United States” for a period of ten years, at least five of
which were after the age of fourteen."
Click the link and read on to find out more....